CODY, Justice.
This is an appeal from the action of the trial court refusing, after hearing on notice, appellant’s petition for temporary injunction which was filed on its behalf and in its name by the Hon. Charles Procter, County Attorney of Anderson County, and’ the action was brought expressly under Articles 4666 and 4667, R.S.192S, Vernon’s Ann.Civ.St. arts. 4666, 4667. The petition charges that appellee Robb & Rowley United, Inc., which maintains in the City of Palestine a picture show business in three theaters (The Texas, the Ritz, and the Pal), and its manager, appellee J. F. Jones, are operating, and unless restrained will continue to operate, in connection with its picture show business, a gambling, scheme or lottery on one night in each week, designated “Buck Night”.
The evidence at the hearing shows that appellees in connection with the operation of their picture show conducted a “Bank Night”, until the Supreme Court decided the case of City of Wink v. Griffin Amusement Company, 100 S.W.2d 695. Following that decision, appellees did not cease the practice of making cash awards which they had theretofore made to their patrons under the old “Bank Night” plan. But the plan on which the cash award was made was changed to some extent, and, as changed, was called “Buck Night” instead of “Bank Night”. The old “Bank Night” plan is sufficiently described in the opinion in the City of Wink Case, supra, and will not be repeated here. While operating “Bank Night”, appellees had accumulated for their register of names, whose corresponding numbers were placed in the container for mixing and drawing, about 13,-000 names. They retained their register of names, but, under the new plan, not only might a patron who had purchased a ticket to a performance in one of its show houses register, but'the register was opened so that anyone who .wished to have his name entered on it might do so. Appellees, however, did not rest there. They went out into the highways and byways, and solicited names to be added to their register. So that at the time of the hearing they had accumulated, in addition to the 13,000 names they had accumulated while operating the old “Bank Night”, about 3000 more names on their register. The “Buck Night” plan provided, however, that the judges that superintended the drawing of numbers from the container should require three numbers to be drawn therefrom. And these three numbers, when drawn, were required to be placed on the backs respectively of the three contestants that were to engage in the contest provided for that particular “Buck Night”. For on each “Buck Night” some sort of contest was put on, selected by the manager, such, for instance, as a pie eating contest. The number that had been pinned to the back of the
winner of the contest became the number that won the cash award for that particular “Buck Night”. The winner’s name was then called, not only inside the theatre hut also on the outside at the entrance, and if he appeared and claimed the award within three minutes from the time that his name was called, he was given the cash award. If the winner did not appear and claim the award within three minutes from the time his name was called, the award was carried over added to the award to be made the following week. The amount of the award started off at $100 and continued to increase $100.00 per week, if not awarded, until it became $700. But if the amount of an award reached $700 without being claimed, it continued to be carried at that amount, while a.new award of $100 was begun. In other words, appellees did not themselves claim any interest in the money (or bank if you prefer to call it so) that was to be awarded, other than that of a stakeholder. It was the purpose of the suit to have this scheme declared a nuisance, and have it abated, and its further operation enjoined.
Appellant has furnished us with an able and exhaustive brief, discussing numerous authorities. Its principal contention is that the scheme of “Buck Night” turns the show house into a gigantic gaming table; that its entire purpose is to obtain bettors, though disguised as theatre patrons, and that ap-pellees kept, exhibited and played such gaming table, or bank, on the principle of the one against the many. Reliance for support of this position is chiefly on Stearnes v. State, 21 Tex. 692. Before discussing this contention we will apply the ruling of the City of Wink Case to the facts of this. In that case, our Supreme Court, speaking through Chief Justice Cureton, said (page 700):
“Section 47 of article 3 of the Constitution of this state [Vernon’s Ann.St. art. 3, § 47] reads: ‘The legislature shall pass laws prohibiting the establishment of lotteries and gift enterprises in this state, as well as the sale of tickets in lotteries, gift enterprises or other evasions involving the lottery principle, established or existing in other states.’
“An analysis of this provision shows that the framers of the Constitution condemned in emphatic terms the establishment and operation in this state of (a)
'lotteries’
(b)
‘gift
enterprises/ and (c)
‘other evasions involving the lottery principle.’
Lotteries
only
have been prohibited by the Penal Code in accordance with the constitutional mandate. [Gift enterprises’ and ‘other evasions involving the lottery principle’ nevertheless remain and stand condemned by the Constitution of the state as being against public policy. It is hardly necessary to argue that the ‘Bank Night’ plan of the defendant in error, if not a lottery, is at the very least a ‘gift enterprise involving the lottery principle,’ and obviously an evasion -of the lottery laws of the state. That ‘gift enterprises’ are a form of lottery evasion is so well known that courts take judicial knowledge of the plan.”
The opinion further states: “In fact, this court prior to the adoption of the [present] Constitution had judicially determined that enterprises such as that before us [‘Bank Night’ plan] were devices and subterfuges for evading the lottery laws.”
And again:
“If it be granted that the plan of defendant in error’s ‘Bank Night’ was not a lottery because a charge was not made for the registration entitling one to participate in the drawing (and this is the only distinction which is here or could be made), then it clearly comes within the condemnatory terms of the Constitution, because it is a ‘gift enterprise’ involving the lottery principle, which the authorities' hold is that principle by which something is to be given by chance. 38 C.J. pp. 286 and 287, § 1, and authorities in note 8, and p. 289, § 3.
“In general, it may be said that chance is .the basic element of a lottery. Unless a scheme for the awarding of a prize requires that it be awarded by a chance, it is not a lottery. As said in the case of State v. Lipkin, 169 N.C. 265, 84 S.E. 340, 344, L.R.A.1915F, 1018, Ann.Cas. 1917D, 137: ‘The ingredient of chance is, obviously, the evil principle which the law denounces and will eradicate, however it may be clothed, or however it may conceal itself in a fair exterior.’
“There are, however, in a lottery, according to the authorities, three necessary elements, namely, the offering of a prize, the award of the prize by chance, and the giving of a consideration for an opportunity to win the prize. 38 C.J. p. 289, § 2.
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CODY, Justice.
This is an appeal from the action of the trial court refusing, after hearing on notice, appellant’s petition for temporary injunction which was filed on its behalf and in its name by the Hon. Charles Procter, County Attorney of Anderson County, and’ the action was brought expressly under Articles 4666 and 4667, R.S.192S, Vernon’s Ann.Civ.St. arts. 4666, 4667. The petition charges that appellee Robb & Rowley United, Inc., which maintains in the City of Palestine a picture show business in three theaters (The Texas, the Ritz, and the Pal), and its manager, appellee J. F. Jones, are operating, and unless restrained will continue to operate, in connection with its picture show business, a gambling, scheme or lottery on one night in each week, designated “Buck Night”.
The evidence at the hearing shows that appellees in connection with the operation of their picture show conducted a “Bank Night”, until the Supreme Court decided the case of City of Wink v. Griffin Amusement Company, 100 S.W.2d 695. Following that decision, appellees did not cease the practice of making cash awards which they had theretofore made to their patrons under the old “Bank Night” plan. But the plan on which the cash award was made was changed to some extent, and, as changed, was called “Buck Night” instead of “Bank Night”. The old “Bank Night” plan is sufficiently described in the opinion in the City of Wink Case, supra, and will not be repeated here. While operating “Bank Night”, appellees had accumulated for their register of names, whose corresponding numbers were placed in the container for mixing and drawing, about 13,-000 names. They retained their register of names, but, under the new plan, not only might a patron who had purchased a ticket to a performance in one of its show houses register, but'the register was opened so that anyone who .wished to have his name entered on it might do so. Appellees, however, did not rest there. They went out into the highways and byways, and solicited names to be added to their register. So that at the time of the hearing they had accumulated, in addition to the 13,000 names they had accumulated while operating the old “Bank Night”, about 3000 more names on their register. The “Buck Night” plan provided, however, that the judges that superintended the drawing of numbers from the container should require three numbers to be drawn therefrom. And these three numbers, when drawn, were required to be placed on the backs respectively of the three contestants that were to engage in the contest provided for that particular “Buck Night”. For on each “Buck Night” some sort of contest was put on, selected by the manager, such, for instance, as a pie eating contest. The number that had been pinned to the back of the
winner of the contest became the number that won the cash award for that particular “Buck Night”. The winner’s name was then called, not only inside the theatre hut also on the outside at the entrance, and if he appeared and claimed the award within three minutes from the time that his name was called, he was given the cash award. If the winner did not appear and claim the award within three minutes from the time his name was called, the award was carried over added to the award to be made the following week. The amount of the award started off at $100 and continued to increase $100.00 per week, if not awarded, until it became $700. But if the amount of an award reached $700 without being claimed, it continued to be carried at that amount, while a.new award of $100 was begun. In other words, appellees did not themselves claim any interest in the money (or bank if you prefer to call it so) that was to be awarded, other than that of a stakeholder. It was the purpose of the suit to have this scheme declared a nuisance, and have it abated, and its further operation enjoined.
Appellant has furnished us with an able and exhaustive brief, discussing numerous authorities. Its principal contention is that the scheme of “Buck Night” turns the show house into a gigantic gaming table; that its entire purpose is to obtain bettors, though disguised as theatre patrons, and that ap-pellees kept, exhibited and played such gaming table, or bank, on the principle of the one against the many. Reliance for support of this position is chiefly on Stearnes v. State, 21 Tex. 692. Before discussing this contention we will apply the ruling of the City of Wink Case to the facts of this. In that case, our Supreme Court, speaking through Chief Justice Cureton, said (page 700):
“Section 47 of article 3 of the Constitution of this state [Vernon’s Ann.St. art. 3, § 47] reads: ‘The legislature shall pass laws prohibiting the establishment of lotteries and gift enterprises in this state, as well as the sale of tickets in lotteries, gift enterprises or other evasions involving the lottery principle, established or existing in other states.’
“An analysis of this provision shows that the framers of the Constitution condemned in emphatic terms the establishment and operation in this state of (a)
'lotteries’
(b)
‘gift
enterprises/ and (c)
‘other evasions involving the lottery principle.’
Lotteries
only
have been prohibited by the Penal Code in accordance with the constitutional mandate. [Gift enterprises’ and ‘other evasions involving the lottery principle’ nevertheless remain and stand condemned by the Constitution of the state as being against public policy. It is hardly necessary to argue that the ‘Bank Night’ plan of the defendant in error, if not a lottery, is at the very least a ‘gift enterprise involving the lottery principle,’ and obviously an evasion -of the lottery laws of the state. That ‘gift enterprises’ are a form of lottery evasion is so well known that courts take judicial knowledge of the plan.”
The opinion further states: “In fact, this court prior to the adoption of the [present] Constitution had judicially determined that enterprises such as that before us [‘Bank Night’ plan] were devices and subterfuges for evading the lottery laws.”
And again:
“If it be granted that the plan of defendant in error’s ‘Bank Night’ was not a lottery because a charge was not made for the registration entitling one to participate in the drawing (and this is the only distinction which is here or could be made), then it clearly comes within the condemnatory terms of the Constitution, because it is a ‘gift enterprise’ involving the lottery principle, which the authorities' hold is that principle by which something is to be given by chance. 38 C.J. pp. 286 and 287, § 1, and authorities in note 8, and p. 289, § 3.
“In general, it may be said that chance is .the basic element of a lottery. Unless a scheme for the awarding of a prize requires that it be awarded by a chance, it is not a lottery. As said in the case of State v. Lipkin, 169 N.C. 265, 84 S.E. 340, 344, L.R.A.1915F, 1018, Ann.Cas. 1917D, 137: ‘The ingredient of chance is, obviously, the evil principle which the law denounces and will eradicate, however it may be clothed, or however it may conceal itself in a fair exterior.’
“There are, however, in a lottery, according to the authorities, three necessary elements, namely, the offering of a prize, the award of the prize by chance, and the giving of a consideration for an opportunity to win the prize. 38 C.J. p. 289, § 2. But the Constitution condemns those things which fall short of containing all the essential elements of a lottery, namely, those things which involve the lottery
principle, of which ‘chance’ is the one which constitutes the very basis of a lottery, and without which it would not be a lottery..
“An ‘evasion’ is defined by Webster’s International Dictionary as ‘act of eluding or avoiding,’ or ‘avoidance by artifice.’
“Defendant in error’s ‘Bank Night’ plan was obviously an evasion of the lottery laws by the avoidance of a direct charge for prize chances (all other elements of a lottery being present), but, nevertheless, having the object of enriching the defendant in error by the ‘chance’ of gain just as much as though a direct charge had been made therefor, manifestly an attempted ‘avoidance’ of the lottery statute ‘by artifice’ in accordance with the generally accepted definition of ‘evasion.’ Therefore, defendant in error’s ‘Bank Night’ plan stands condemned by the Constitution of Texas. Being condemned by the Constitution, it is against the ‘public policy of the State’.”
Applying the ruling made in the City of Wink Case to the facts of the present case, we hold that the- “Buck Night” plan operated by appellees was not such a lottery as is denounced by the articles in the Penal Code thereagainst, but is an obvious evasion of the lottery laws by avoidance of a direct charge for prize chances. It is idle to contend that by superadding the contest feature to the drawing of the numbers from the container that the transaction is purged of its chance elements. That it in fact multiplies chance is too clear to require discussion. However, it is also clear that no direct charge is made to the participants. The requirement that the winner appear and claim the prize within three minutes from the time his name is announced at the entrance to the theatre undoubtedly operates as a tremendous pressure on anyone desiring to participate to pay the price of admission. That is undoubtedly its purpose. And it is equally obvious that the award is made out of funds accumulated from paid admissions. In short, the plan is a transparent evasion. And as such comes under the condemnatory terms of the Constitution. The “Buck Night” plan offends against the public policy of the State, and the Constitution contemplates that the legislature shall enact laws thereagainst. But, as pointed out in the City of Wink Case, the legislature has not as yet done so.
Furthermore, while the question is not before us, we have no doubt that the operation of the plan does constitute a public nuisance which is subject to be enjoined or ordered abated at the suit of the State. But not under the authority of Articles
4604-4667.
For, as held by our Supreme Court, through the Commission of Appeals, “But Article 4667 clearly contemplates that injunction is not contemplated except in aid 'of criminal statutes clearly defining and prohibiting gaming and designated games.” State ex rel. Shook v. All Texas Racing Association [128 Tex. 384], 97 S.W.2d 669, 671, 100 S.W.2d 348.
As already pointed out, it was stated in the City of Wink Case that an evasion of the lottery law, accomplished through means of a gift enterprise, is not denounced by any law in the Penal Code. It is certain that the framers of the present Constitution were of the opinion that statutes then in force did not prohibit such enterprises. The statute against keeping a gaming table or a bank, which appellant claims is being violated by operation of the “Buck Night” plan, was then in force. We will not further extend this opinion to show that the County Attorney did not have authority under Article 4667 to institute this action. The judgment of the trial court will be affirmed.
Affirmed.
PLEASANTS, C. J., absent.